Why Shira’s Wrong

The recent federal court rebuke of New York City’s stop-and-frisk tactics shows that many disputes are best resolved through politics, not lawsuits.

Courts resolve discrete controversies — whether existing law has been violated. They’re not equipped to answer questions about what the law “should” be. Judicial remedies are supposed to make plaintiffs whole, not rewrite policies wholesale.

But try telling that to Judge Shira Scheindlin. She not only enjoined NYPD’s existing tactics, but also ordered the city to video all stops within certain precincts and appointed a monitor to “develop … a set of reforms of the NYPD’s policies, training, supervision, monitoring and discipline regarding stop and frisk.” Such intricate policy prescriptions are the stuff of statutes and regulations, not judicial opinions.

Whether or not any of this is good policy, it has very little to do with the law. Indeed, Supreme Court precedent is utterly at odds with Scheindlin’s Fourth and Fourteenth Amendment analysis.

Scheindlin concluded that NYPD’s policy violated the Fourteenth Amendment’s Equal Protection Clause, relying heavily on statistical evidence of the race of those stopped by the NYPD. But the Equal Protection Clause prohibits only intentional discrimination, not mere statistical differences in the racial impact of government policies.

In Washington v. Davis (1976), for example, the Supreme Court declared, “Our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” Were it otherwise, the fact that standardized tests or even arrests have disproportionate racial impacts would be unconstitutional, transforming the Equal Protection Clause from a guarantee of equal protection to one of equal outcome.

No evidence showed that the NYPD’s practices were intended to discriminate against individuals because of race. Indeed, the notion that one of America’s most progressive cities, with a majority-minority police department, operates with animus towards racial minorities is absurd.

Scheindlin’s Fourth Amendment analysis is equally specious. The Fourth Amendment prohibits “unreasonable” searches and seizures. The key Supreme Court precedent is Terry v. Ohio, which held that police may stop and frisk individuals based on “reasonable suspicion” of criminal activity. Terry was decided by the Warren Court, the most liberal Supreme Court in US history. Even Justice Thurgood Marshall, whose career was dedicated to advancing civil rights, agreed that stop-and-frisk was consistent with the Fourth Amendment.

Some of the NYPD’s stops may lack reasonable suspicion and be problematic. But even the plaintiffs’ own expert found unconstitutional stops to be exceedingly rare, comprising only 6 percent of the 4.4 millions stops studied. Such data highlight the impropriety of adjudicating the constitutionality of stops en masse, as a class action.

If one insists, however, on a wholesale examination of the NYPD’s policy, it is still consistent with the Fourth Amendment. The Supreme Court’s “special needs” doctrine permits broad-brush, highly-intrusive searches, without individualized suspicion of wrongdoing, when grounded in public safety needs.

In Skinner v. Railway Labor Executives’ Association (1989), the court upheld random drug testing of railway employees employed in safety-sensitive positions, even though there was no evidence that the tested employees used drugs. The court found that the privacy intrusion involved — admittedly high — was outweighed by the public safety benefits.

The special-needs doctrine has been used to uphold sobriety checkpoints, border checks and other situations in which searches — lacking in individualized suspicion — are conducted to protect the public.

While the doctrine hasn’t been applied to routine police stops, this is because such stops have been litigated using the Terry framework, which focuses on the reasonableness of individual encounters. But when the constitutionality of a stop-and-frisk is challenged wholesale rather than retail — as in the NYPD case — the special-needs doctrine should apply.

Had Scheindlin considered the special-needs doctrine, she’d have had to conclude that New York’s stop-and-frisk policy is constitutional. A frisk is surely less intrusive than the random drug tests upheld in Skinner. Equally important, the public safety benefits are palpable.

New York City, for example, has seen dramatic decreases in violent crimes — particularly in poor, predominantly minority precincts — since implementing stop-and-frisk.Stop-and-frisk also deters crimes by interrupting overt criminal behavior and reducing the incentive to carry weapons. Scheindlin’s over-reading of the Constitution thus is not merely wrong; it is dangerous.

More is at stake here than the use of flawed constitutional arguments that warp well-established constitutional law. Scheindlin’s decision, while likely to be eventually reversed on appeal, further encourages the use of courts as venues for resolving complex policy, rather than legal, disputes.

The losers are the citizens of places like New York, including millions of minority voters, who have been disfranchised of their ability to enact reasonable stop-and-frisk policies through the democratic process.

David B. Rivkin Jr. is an appellate lawyer with Baker Hostetler LLP. Elizabeth Price Foley is a professor of constitutional law at Florida International University.